Lim Toh Sin v Public Prosecutor

JurisdictionSingapore
CourtFederal Court (Singapore)
Judgment Date10 February 1966
Date10 February 1966
Docket NumberCriminal Appeal No 43 of 1965

[1966] SGFC 1

Federal Court

Wee Chong Jin CJ

,

Tan Ah Tah FJ

and

F A Chua J

Criminal Appeal No 43 of 1965

Lim Toh Sin
Plaintiff
and
Public Prosecutor
Defendant

Khoo Hin Hiong (Chor Pee & Hin Hiong) for the appellant

Francis T Seow and Dalip Singh (Deputy Public Prosecutor) for the respondent.

Begu v King Emperor AIR 1925 PC 130 (folld)

Quinn and Howland v R [1949] MLJ 217 (folld)

R v Farid (1944) 30 Cr App R 168 (folld)

R v Haddy [1944] KB 442 (folld)

Stirland v Director of Public Prosecutions [1944] AC 315 (folld)

Woolmington v Director of Public Prosecutions [1935] AC 462 (folld)

Criminal Procedure Code (Cap 132, 1955 Rev Ed) s 166 (consd)

Courts of Judicature Act 1964 (Act 7 of 1964) (M'sia) s 60 (consd)

Criminal Procedure and Sentencing–Trials–Direction to jury–Trial judge failed to put accused's specific defence to jury–Whether trial judge's misdirection led to substantial miscarriage of justice–Whether accused's conviction for murder should be set aside–Whether accused should be convicted of armed robbery instead–Section 60 Courts of Judicature Act 1964 (Act 7 of 1964) (M'sia), s 166 Criminal Procedure Code (Cap 132, 1955 Rev Ed)

Two men, one of whom was the appellant, committed a robbery. The deceased gave chase and caught hold of one robber. The second robber, who was armed with a gun, approached the deceased from behind a pillar and shot him. The appellant was charged with murder. At trial, the appellant's defence was that he took an inactive part in the robbery, and it was his accomplice who shot the deceased. In summing up the case, the trial judge failed to put the appellant's specific defence to the jury for their consideration. Instead, he simply directed the jury that if they were not satisfied as to the identification of the appellant as the gunman, it was open to them to find him not guilty of murder. The appellant was convicted of murder. He appealed.

Held, allowing the appeal against conviction for murder:

(1) The trial judge made a grave misdirection to the jury when he directed that they had to be satisfied that the appellant was the passive robber before they could acquit him. He failed to put the appellant's specific defence to the jury for their consideration, and also failed to direct them to consider the whole of the evidence when deciding whether the Prosecution had proved the appellant's guilt beyond reasonable doubt: at [15].

(2) In considering if a substantial miscarriage of justice had occurred within the meaning of the proviso to s 60 of the Courts of Judicature Act 1964 (Act 7 of 1964) (M'sia), the court had to consider if, by reason of the mistake, omission or irregularity in the trial, the appellant had lost a chance of acquittal which was fairly open to him. The test was whether, if the jury had been properly directed, they would inevitably have come to the same conclusion. In this case, the identification evidence was not overwhelming, and, by reason of the trial judge's misdirection, the appellant had lost a fair chance of being found not guilty. The appeal against conviction for murder was accordingly allowed: at [17] to [19].

(3) The evidence established beyond a reasonable doubt that the appellant had committed the offence of armed robbery. Therefore, pursuant to s 166 of the Criminal Procedure Code, the court convicted the appellant of armed robbery: at [20].

Wee Chong Jin CJ

(Singapore):

1 The appellant was convicted before A V Winslow J [in] the High Court of the murder of a detective Reddy Melvyn Douglas.

2 The facts of the case so far as it is necessary to...

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